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2019 DIGILAW 1204 (KAR)

Sumitra v. Narayana

2019-06-12

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. By consent of the learned counsel for the parties, the matter is taken up for final hearing. The appellants claimants who are the wife, children and aged parents of the deceased have filed the present appeal against the judgment and order dated 18.08.2015 passed in ECA No.8/2014 on the file of the Additional Senior Civil Judge and MACT, Srirangapatna, awarding compensation of Rs.6,15,900/- with interest at 12% p.a. from the date of accident i.e. 24.07.2011 till the realization of the amount. 2. It is the case of the claimants that the first respondent is the owner of the lorry bearing No. MYT-5394 and the second respondent is the insurer of the vehicle. Deceased Bandi @ Bandisiddegowda was an employee under the first respondent and on 24.07.2011, the deceased Bandisiddegowda and others loaded scenarios to the lorry No. MYT-5394 at Mandya and had been to Mahadevapura situated near Ramanagara for the purpose of drama. On that night after finishing the drama, deceased along with other loaders, loaded the scenarios to the lorry and proceeded towards Mandya. Deceased was sitting in the backside of the lorry. The driver of the lorry drove the same on Bangalore Mysore road, in a rash and negligent manner with high speed near Nidagatta village, which resulted in an accident and dashed against another lorry bearing No.TN-09-T-2858 which was parked on the left side of the road. In view of the unfortunate accident, deceased sustained injuries to his head, nose, ear and eyes. Immediately, he was shifted to General Hospital at Maddur and then for further treatment he was being shifted to NIMHANS where he died on the way. The deceased died during the course of employment. 3. It is the further case of the claimants that he was hale and healthy and he was earning Rs.8,000/- monthly wages apart from daily bata of Rs.50/-. The jurisdictional Police registered a case against the driver of the lorry for the offences punishable under Sections 279, 304(A) of IPC and 187 of IMV Act in Crime No.147/2011. The policy was in force as on the date of accident. Therefore, both the respondents are liable to pay compensation of Rs.10,00,000/- with interest at 18% p.a. from the date of petition till the date of realization of the entire amount. 4. The policy was in force as on the date of accident. Therefore, both the respondents are liable to pay compensation of Rs.10,00,000/- with interest at 18% p.a. from the date of petition till the date of realization of the entire amount. 4. After receipt of summons, the first respondent filed written statement and admitted that deceased was working as a loader and unloader in his lorry from the last three years and categorically admitted the employee and employer relationship between them. He also admitted that the deceased was getting monthly wages of Rs.5,000/- and Rs.40/- as daily bata and denied that the deceased was getting Rs.8,000/- and daily bata of Rs.50/- He has contended that he is not liable to pay any compensation and it is only the second respondent who is liable to pay the compensation. 5. The second respondent Insurance Co. filed objections denying the relationship between the parties, date of accident and employment with the first respondent and sought for dismissal of the claim petition. 6. Based on the pleadings of the parties, the Court below has framed the following issues : 1. Whether the deceased Bandi @ Bandisiddegowda in WCA-06/2011 was being employed as a loader and unloader in lorry bearing No. MYT-5394 belonging to the 1st respondent, met with accident on 24.07.2011 and sustained grievous injuries and died ? 2. Whether the accident arose out of and during the course of employment of the deceased under the 1st respondent ? 3. What was the monthly wages and age of the deceased at the time of accidental death ? 4. Whether the applicants were dependents of the deceased ? 5. What is the amount of compensation the applicants are entitled to receive ? 6. Which respondent is liable to deposit the compensation before this Court ? 7. To what order ? 7. In order to establish the case of the claimants, the wife examined herself as P.W.1 and marked 7 documents as Exs.P.1 to P.7. The second respondent examined R.W.1 and marked Ex.R.1 certified copy of the policy. 8. 6. Which respondent is liable to deposit the compensation before this Court ? 7. To what order ? 7. In order to establish the case of the claimants, the wife examined herself as P.W.1 and marked 7 documents as Exs.P.1 to P.7. The second respondent examined R.W.1 and marked Ex.R.1 certified copy of the policy. 8. The Tribunal after considering the entire material on record has recorded a finding that the claimants proved that the deceased Bandi @ Bandisiddegowda was employed as a loader and unloader in the lorry bearing No. MYT-5394 belonging to the first respondent, which met with an accident on 24.07.2011 and that the deceased sustained grievous injuries and died and also proved that the accident occurred out of and in the course of the employment of the deceased under the first respondent. The Tribunal also held the monthly wages and age of the deceased partly in the affirmative and the appellants are the dependents of the deceased. Accordingly, by impugned judgment and order, the Tribunal awarded a sum of Rs.6,16,900/- with interest at 12% p.a. from the date of the accident i.e. 24.07.2011 till its realization. Hence, the present appeal is filed by the claimants seeking enhancement of the compensation. 9. The insurance Co. has not filed any appeal against the impugned judgment and order. 10. Heard the learned counsel for the parties. 11. Sri. M.Y. Sreenivasan, the learned counsel for the appellants claimants contended that the Tribunal erred in taking the income of the deceased at Rs.6,200/- per month, ignoring the fact of the amendment of Section 4(1) Explanation II of the Employees Compensation Act, 1923, which prescribes monthly wages at Rs.8,000/- per month with effect from 18.01.2010. Admittedly, the accident took place after the amendment. Therefore, the Tribunal was not justified in taking the monthly wages of the deceased at Rs.6,200/- per month. He also fairly submits that the Tribunal though held that the claimants are entitled to interest from the date of accident i.e. 24.07.2011 till the date of realization, but the claimants are entitled to interest after one month from the date of the accident under the provisions of Section 4(A)(1) and 4(A(3)(a)) of the Act. Therefore, he sought to allow the appeal. 12. Per contra, Sri. S. Krishna Kishore, learned counsel for Sri. Janardhan Reddy, learned counsel for respondent No.2, sought to justify the impugned order. Therefore, he sought to allow the appeal. 12. Per contra, Sri. S. Krishna Kishore, learned counsel for Sri. Janardhan Reddy, learned counsel for respondent No.2, sought to justify the impugned order. He would contend that in the absence of any material documents produced by the claimants that deceased was earning monthly wages of Rs.8,000/- per month, the Tribunal was justified in taking his monthly wages at Rs.6,200/- per month for awarding compensation. Therefore, he sought to dismiss the appeal. 13. This Court admitted the appeal to consider the substantial question of law as under : "Whether the Tribunal is justified in taking the monthly wages of the deceased at Rs.6,200/- per month, in view of the provisions of Section 4 Explanation 2 which substituted the words Rs.8,000/-, by Act No.45 of 2009 with effect from 18.01.2010, in the facts and circumstances of the present case ?" 14. Having heard the learned counsel for the parties, it is undisputed fact that the deceased Bandi @ Bandisiddegowda was an employee under the first respondent employer and there is no dispute with regard to relationship of master and servant. It is also not in dispute that on 24.07.2011 due to the rash and negligent driving of the driver of the lorry bearing No. MYT 5394 owned by the first respondent, it met with an accident which resulted in the death of the deceased. The first respondent filed objections and stated on oath that the deceased was working with him for the last three years and he was paying salary of Rs.5,000/- + bata. It is also not in dispute that the accident occurred due to rash and negligent driving of the driver of the lorry as is evident from Exs. P.1 to P.6. The Tribunal proceeded to pass the judgment and order taking the monthly wages of the deceased at Rs.6,200/- per month, taking the age of the deceased as 35 years at the time of his death and the relevant factor 197.06 as per the IV schedule of the Workmen's Compensation Act to determine the just compensation. 15. Admittedly, accident took place on 24.07.2011. The provisions of Section 4(1) Explanation II came to be substituted by the word Rs.8,000/- by Act No.45 of 2009 with effect from 18.01.2010. 15. Admittedly, accident took place on 24.07.2011. The provisions of Section 4(1) Explanation II came to be substituted by the word Rs.8,000/- by Act No.45 of 2009 with effect from 18.01.2010. Therefore, the Tribunal was not justified in taking the monthly wages of the deceased as Rs.6,200/- per month, which is contrary to the material on record. In view of the aforesaid reasons, the substantial question of law raised in the appeal has to be answered in the negative, holding that the Tribunal is not justified in taking the monthly wages of the deceased at Rs.6,200/- per month and the claimants have made out a case to take the monthly wages of the deceased at Rs.8,000/- per month i.e. Rs.8,000/- x 50 x 197.06 x 100. 16. After reassessing the entire material on record, the claimants are entitled to the just compensation as under : Loss of dependency (Rs.8,000/- x 50% x 197.06) Rs. 7,88,240/- Funeral expenses Rs. 5,000/- Total compensation Rs. 7,93,240/- Less compensation awarded by the Commissioner Rs. 6,15,900/- Enhanced compensation Rs. 1,77,340/- 17. In view of the above the appeal filed by the claimants is allowed in part. The impugned judgment and order passed by the Tribunal is modified. The claimants are entitled to enhanced compensation of Rs.1,77,340/- with interest at 12% per annum after one month from the date of accident i.e. 24.07.2011. 18. Out of the enhanced compensation, Rs.50,000/- each shall be deposited in Fixed Deposit in the name of claimants appellants No. 2 and 3, in any Nationalised Bank, till they attain majority and they are entitled to withdraw interest periodically, through their natural guardian mother and the remaining amount shall be disbursed to the claimant appellant No.1 forthwith. Ordered accordingly.